Tothne Eros (Migration)

[2020] AATA 5412

Tothne Eros (Migration) [2020] AATA 5412 (23 December 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:Monika Tothne Eros (‘First Applicant’)
  Jozsef Toth (‘Second Applicant’)

CASE NUMBER:2013285

HOME AFFAIRS REFERENCE:BCC2016/3844017

MEMBER:Dr Jason Harkess

DATE:23 December 2020

PLACE OF DECISION:Melbourne

DECISION:The Tribunal affirms the decisions not to grant the Applicants Student (Temporary) (Class         TU) (Subclass 500) visas

Statement made on 23 December 2020 at 9:28am

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – Federal Court remittal – no current enrolment – not necessary to consider genuine applicant criterion – no response to tribunal’s invitation to comment – member of family unit – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359A, 360(3)
Migration Regulations 1994 (Cth), r 1.03, Schedule 2, cls 500.211(a), 500.212, 500.311

CASE
Eros v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1061

STATEMENT OF DECISION AND REASONS

INTRODUCTION AND OVERVIEW

Student Visa Refusal – Application for Review

1. The Applicants are citizens of Hungary. They seek review of decisions made by a delegate of the Minister (‘the delegate’) refusing to grant them student visas. The First Applicant is 47 years of age. The Second Applicant is 51 and is the partner of the First Applicant.

2. The Applicants applied for their student visas on 16 November 2016. The visa applications were refused by the delegate on 22 February 2017. The Applicants lodged their review application with the Tribunal on 3 March 2017.

3. If granted, a student visa permits a non-citizen to enter and remain in Australia to study full-time on a temporary basis. An applicant’s family members may also join the application so that they too are issued with visas permitting them to stay in Australia for the duration of the main applicant’s studies.

4. The specific type of visa the Applicants applied for is classified under the Migration Regulations 1994 (Cth) (‘the Regulations’) as a Student (Temporary) (Class TU) (Subclass 500) visa.[1] Such visas are issued under the general power to issue visas conferred on the Minister, or his delegates, by the operation of s 65 of the Migration Act 1958 (Cth) (‘the Act’).

   [1] See Migration Regulations 1994 (Cth), Sch 1, cl 1222; Sch 2, cls 500.1 to 590.612.

5. In this case there are two applicants. The First Applicant is the main applicant. She seeks a student visa so that he can reside in Australia while undertaking a course of study. For the visa to be granted, she must meet the primary criteria set out in Part 500 of Schedule 2 of the Regulations.[2]

   [2] See Migration Regulations 1994 (Cth), Sch 2, cls 500.211 to 500.218.

6. The Second Applicant seeks a student visa as a member of the same family unit as the First Applicant. The grant of a student visa to a family member of the main applicant is contingent on both the main applicant meeting the primary criteria and the family member meeting the secondary criteria.[3] For a family member to have any prospect of a successful visa outcome, the main applicant first needs to receive a favourable outcome in relation to their application. If the main applicant’s case fails, so too must any connected family member’s application.

   [3] Migration Regulations 1994 (Cth), Sch 2, cl 500.311.

Procedural History

Delegate’s Primary Decision

1. The delegate refused the visa on the basis that the First Applicant was found not to meet the criteria contained in cl 500.212 of Schedule 2 of the Regulations (‘the genuine applicant criterion’).

2. The delegate’s reasons are set out in a decision record. A copy of that decision record was provided to the Applicant upon being notified that her visa application had been refused. The Applicant provided a copy of the delegate’s decision record to the Tribunal when she lodged her review application.

Tribunal’s Determination of Review Application in Case Number 1703829

1. The original Tribunal determined the review application on the basis that the genuine applicant criterion was not satisfied. The original Tribunal affirmed the delegate’s decision for this reason on 9 January 2019.

FCCA’s Determination of Judicial Review Application

1. The Applicants subsequently applied for judicial review of the original Tribunal’s decision in Case Number 1703829 to the Federal Circuit Court of Australia (‘the FCCA’). The FCCA dismissed the application for judicial review.

FCA’s Determination of Judicial Review Application

1. The Applicants subsequently appealed the FCCA’s decision to the Federal Court of Australia (‘the FCA’). The FCA allowed the appeal. The case is reported: Eros v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1061. The FCA found that the original Tribunal had misconstrued certain words in cl 500.212. The result of the FCA appeal rendered the original Tribunal’s determination invalid. The case was remitted to the Tribunal for reconsideration and subsequently reconstituted.

Issues for Determination

1. The primary decision of the delegate now comes before the Tribunal to be reviewed again. The newly constituted Tribunal notes that its essential function remains largely unaffected by the fact that the review application has been considered by the original Tribunal on an earlier occasion.

2. The ultimate issues for determination by the Tribunal following a further hearing of the review application remain the same. In this case, those issues that arise for consideration and determination by the Tribunal are as follows:

   (a)whether the First Applicant is currently enrolled in a course of study, as required by cl 500.211 of Sch 2 of the Regulations (‘the enrolment criterion’); and

   (b)whether the First Applicant is a genuine applicant for entry and stay as a student in Australia, as required by the genuine applicant criterion.

Determination of Application without Hearing

1. The enrolment criterion requires that a student visa application be founded on evidence of the applicant being enrolled in ‘a course of study’.[4] A ‘course of study’ is defined as ‘a full-time registered course of study.’[5] A ‘registered course’ is one which is provided by an institution which has been registered under the Education Services for Overseas Students Act 2000 (Cth) (‘ESOS Act’) to provide that course to overseas students.[6]

   [4] Migration Regulations 1994 (Cth), Sch 2, cl 500.211(a). The present case is not advanced on the basis that the Applicant satisfies any of the other criteria contained in cls 500.211(b), (c) and (d).

   [5] Migration Regulations 1994 (Cth), reg 1.03.

   [6] Migration Regulations 1994 (Cth), reg 1.03.

2. All registered courses and course providers are listed in the Commonwealth Register of Institutions and Courses for Overseas Students (‘CRICOS’), an online register kept in accordance with the requirements of the ESOS Act.[7] Details of courses listed in CRICOS are integrated into the Provider Registration and International Student Management System (‘PRISMS’), a database maintained by the Australian government.[8] The PRISMS database is the principal means by which registered course providers comply with legislative requirements relating to the monitoring of international students studying in Australia

   [7] Education Services for Overseas Students Act 2000 (Cth), s 10.

   [8] See generally Department of Education and Training, Provider Registration and International Student Management System (PRISMS): Provider User Guide (Department of Education and Training, May 2018).

3. As the newly constituted Tribunal came to prepare for reconsidering the Applicants’ case, the Tribunal conducted a check of the PRISMS database to ascertain whether the First Applicant was enrolled in a course to ascertain whether she was likely to meet the enrolment criterion. A search of the PRISMS database conducted on 3 December 2020 revealed that the First Applicant was not enrolled in any registered course.

4. By letter dated 4 December 2020, the Tribunal wrote to the Applicants pursuant to s 359A of the Act. That letter advised the Applicants of the following:

   (a)A PRISMS database search showed, as at 3 December 2020, that the First Applicant was not currently enrolled in any registered course of study.

   (b)The enrolment criterion is a ‘time of decision’ criterion which means that she must be currently enrolled in a registered course of study to be eligible to be granted a student visa at the time the Tribunal makes its decision.

   (c)If the Tribunal were to rely on the PRISMS database search, showing the First Applicant is not currently enrolled, the Tribunal may form the view that the determinative issue is now whether the First Applicant meets the enrolment criterion.

5. The Applicants were invited to comment on or respond to the information and provide any response to the Tribunal in writing by 18 December 2020. The Tribunal has not received any substantive response from the Applicants relating to the issue of the First Applicant’s current enrolment status. No request for additional time was made by the Applicants or their registered migration agent to comment on or respond to the information concerning the First Applicant’s enrolment status.[9] The Tribunal conducted a further search of the PRISMS database on 22 December 2020 to ascertain the current enrolment status of the First Applicant. That search showed that the First Applicant’s enrolment status had not changed since 3 December 2020. The First Applicant is not currently enrolled in a registered course of study.

   [9] The Tribunal notes that on 17 December 2020 it received a completed form from the Applicant’s representative, Mrs Yanmeng Li of ‘No Borders Migration’, appointing her as the Applicants’ authorised agent in this matter. However, that form was not responsive to the Tribunal’s invitation to comment on the First Applicant’s enrolment status. The form did not include any attachment or any comment on the First Applicant’s enrolment status.

6. By the operation of s 359C and 360 of the Act, in circumstances where the Tribunal has invited the Applicants to give comments or a response pursuant to s 359A of the Act, and the Applicants have failed to do so within the prescribed period, the Tribunal may proceed to determine the review application without taking any further action to obtain the Applicants’ views on the information. Furthermore, by the operation of s 360(3) of the Act, the Applicants are now not entitled to appear before the Tribunal.

7. The Tribunal has decided to determine this application having regard to all the information before it on that basis.

ENROLMENT CRITERION

1. Producing evidence of a current enrolment is a critical first step towards obtaining a student visa. Such evidence shows that the applicant has, prior to the Tribunal making its decision, entered into a legally binding contract with a registered course provider. That contract gives rise to several significant obligations. First, it obliges the course provider to provide the applicant with a pre-determined course of education or training over a specified period. Secondly, it obliges the applicant to pay for the course. Thirdly, it obliges the applicant to complete the course requirements to receive a testament from the course provider as to what the applicant has achieved by way of formal qualification. An enrolment represents a present and operating commitment by the applicant to complete a course of study. It demonstrates a tangible and immediate need for a student visa.

2. An enrolment continues to be of legal significance once a student visa is issued. All student visas are subject to a condition that the visa holder remain enrolled in a registered course of study.[10] That condition operates on a continuing basis every day the visa remains valid. If a student visa is issued to an applicant who is not enrolled in a course of study, the visa will be breached as soon as it is granted.

   [10] Migration Regulations 1994 (Cth), Schedule 2, cl 500.611(1)(a); Schedule 8, Condition 8202(2)(a).

3. The Tribunal must therefore be presented with evidence that shows the First Applicant is currently enrolled in a registered course of study. Absent such evidence, a student visa cannot sensibly be granted. Indeed, consideration of whether the primary criteria are met, as contained in cl 500.212 to 500.218, is premised on the enrolment criterion in cl 500.211 being met. If cl 500.211 is not met, there is no administrative utility in the Tribunal proceeding to consider any further primary criteria.

4. The PRISMS report clearly indicates that the First Applicant is not currently enrolled in a registered course of study. While the determinative issue for the delegate was whether the First Applicant met the genuine applicant criterion, the Tribunal has concluded that the decision under review ought to be affirmed in this case because the First Applicant does not meet the enrolment criterion

5. The Tribunal finds that the First Applicant does not meet the criteria contained in cl 500.211 because she is not currently enrolled in a registered course of study.

GENUINE APPLICANT CRITERION

1. In the circumstances, the question of whether the First Applicant meets the criteria under clause 500.211 has become determinative for the purposes of the outcome of the case now before the Tribunal. If the First Applicant does not meet the criteria under the cl 500.211, there is no administrative utility in the Tribunal proceeding to consider whether the genuine applicant criterion is met under cl 500.212.

SUMMARY

1. The First Applicant does not meet the regulatory requirements for the grant of a student visa because the Tribunal is not satisfied that the First Applicant meets any of the criteria contained in cl 500.211. Because the First Applicant fails to meet the primary criteria, the Second Applicant’s case must also fail.

DECISION

1. The Tribunal affirms the decisions not to grant the Applicants Student (Temporary) (Class TU) (Subclass 500) visas.

Dr Jason Harkess
Member